Twidale v Marshall

Case [2022] QCATA 164

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION

Twidale & Anor v Marshall  [2022] QCATA 164

PARTIES: henry twidale and jennifer twidale 

(applicants)

v
alison marshall

(respondent)

APPLICATION NO:

APL358-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON: 

12 October 2022

HEARING DATE:

27 September 2022

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – FENCING DISPUTE - where existing fence not on boundary but treated by parties as dividing fence – where negotiations for new dividing fence unsuccessful – where party proposing new fence decides to build it on own property –– where other party asserts new fence is on boundary line – where that claim is disputed - where the builder of new fence applies to QCAT for confirmation of position and protection of new and old fences – where application for leave to tender fresh. evidence dismissed – where tribunal gives decision for builder of new fence – where other party seeks leave to appeal – where no appellable found and findings of fact upheld – where application for leave to appeal dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 12, s 13

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R404

Coulton v Holcombe (1986) 162 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118

Holland v The Queen (2005) 154 A Crim R 376

JM v QFG and KG [2000] 1 Qd R 373

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Pappas v Meikeljohn’s Accountants [2017] QCATA 60
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257

R v Erasmus [2006] QCA 245

Robinson v Corr [2011] QCATA 302
Sali v SPC Limited (1993) 67 ALJR 841

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
W (an infant), In re [1971] AC 1014

APPEARANCES & REPRESENTATION:

For the applicant: Self represented

For the respondent: Self represented

REASONS FOR DECISION

Introduction   

  1. The applicants (`Twidale’) and the respondent (`Marshall’) have been neighbours at Ashgrove for some five years. Between their properties is a welded mesh fence (`the old fence’) which they have generally, albeit not with perfect accuracy[1] regarded as a dividing fence.

    [1]In fact the old fence is slightly on the Twidale’s side of the true boundary line: primary decision 22 November 2021 (`the subject decision’) at [17].

  2. Marshall, after rebuilding her house, proposed to remove the old fence and erect a more attractive timber fence (`the new fence’) on the Twidale-Marshall boundary line. Marshall…

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Details
AGLC
Twidale v Marshall [2022] QCATA 164
Case
[2022] QCATA 164
Decision Date

CaseChat Overview and Summary

In Twidale v Marshall, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to resolve a dispute between neighbours regarding the construction of a new fence. The old fence, which had been used as a dividing fence between the two properties, was found to be slightly on Twidale’s land. Following unsuccessful negotiations, Marshall proceeded to build a new fence on his property, which Twidale claimed encroached on the boundary line. Marshall applied to QCAT for confirmation of the fence’s position and protection against encroachment claims. Twidale subsequently sought leave to appeal the tribunal’s decision, which was dismissed.

The primary legal issues in the case were whether the new fence was within Marshall’s property or on the boundary line, and whether the tribunal’s findings were supported by evidence and free from legal error. Twidale argued that the tribunal’s findings were not supported by evidence and contained legal errors, while Marshall maintained that the tribunal’s decision was correct and should be upheld. The tribunal found that there was strong survey and photographic evidence that the new fence was within Marshall’s property, and that the old fence was a sufficient dividing fence despite its slight misalignment with the boundary line.

The tribunal’s reasoning was based on the evidence presented and the application of relevant statutory provisions. The tribunal found that the evidence supported the conclusion that the new fence was not on the boundary line, and that the old fence was a sufficient dividing fence. The tribunal also found that there was no appellable error in the decision, and that the application for leave to appeal should be dismissed. The tribunal’s findings were based on the evidence presented and were not affected by any legal error. As such, the application for leave to appeal was dismissed.

The final orders of the tribunal were that the application for leave to appeal was dismissed. The tribunal upheld its previous decision that the new fence was within Marshall’s property and that the old fence was a sufficient dividing fence. The tribunal found that there was no appellable error in its decision and that the application for leave to appeal should be dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

The dispute descended to a debate about the respective positions of two screws in concrete pillar, reminiscent of legendary mediaeval disputes about the number of angels able to sit on the point of a needle. Twidale contended that a screw ‘in the face of the concrete pillar’ determined the precise boundary.[9] Marshall, on the other hand, submitted that the true boundary marker, as fixed by her surveyor, was a ‘GI nail’, marked with red tape.[10] A fine distinction was drawn between the surveyor’s screw and one inserted by a builder to carry a string line. [9]T page 25 line 13, page 26 line 32.[10]T page 11 lines 38-39, page 29 line 34.Turns on the facts This case turns on its own fact, not on esoteric law. The ultimate factual question is whether the new fence is on Marshall’s property or right on the boundary line. It is common ground that the old fence is slightly but definitely upon Twidale’s land[11].[11]T page 9 lines 6-10 (Marshall), line 23 (Twidale). The adjudicator, as the judge of fact, made these findings: (a)`there is strong survey and photographic evidence that the new fence is well within [Marshall’s] property and away from the surveyed boundary line’.[12] ‘The new fence is shown to be inside [Marshall’s] property by at least [300 to 400 mm]’. Indeed, ‘the photograph of the survey marker in the back corner shows that the new fence … is approximately 600mm inside [Marshall’s] property’.[13](b)The [old] fence was considered by both parties to be a sufficient dividing fence … for the time that the parties have been neighbours’.[14](c)The boundary survey has determined that the [old] fence sits just inside [Twidale’s] property, such that it would not be practically possible to build another fence on the boundary’.[15] That is to say, the de-militarised zone was just too narrow to accommodate yet another fence.[12]Reasons for primary decision (`Judgment’) paragraph 14].[13]Judgment paragraphs [15] and [16].[14]Judgment paragraph [17].[15] Judgment paragraph [17] 3rd sentence. From these findings the orders made duly followed, and need not be recited here. On the basis of finding ‘(c)’ the adjudicator applied a provision in subsections 13(1)(c)(ii) and 13(2) of the Neighbourhood Act, deeming the old fence to be a sufficient dividing fence, despite its slight misalignment with the boundary line. Subsection 13(1)(c)(ii) relevantly provides:A dividing fence is a sufficient dividing fence if … QCAT decides the dividing fence is a sufficient dividing fence.And subsection 13(2) states:[T]the existence of a fence, other than a dividing fence, on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence. The limited purpose of an application for leave to appeal is to see whether the primary decision is arguably and significantly affected by appellable error, or a finding that has no support in the evidence:[16] [16]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

Evidence

Evidence Before The Court

Marshall, in disputing that claim, relied on the expert evidence of a licensed surveyor trading as Survey 360 of Anstead, Brisbane, dated 21 July 2020. The tribunal observed that Twidale could have obtained his own expert report, but the suggestion was not then accepted.[3] At the trial Twidale was content to assert his own view in opposition to the survey evidence,[4] and to hint darkly, without offering proof, that an image produced by Marshall was ‘photoshopped’.[5][3]T page 41 lines 34-39.[4]T page 9 lines 21-22; page 10 line 35; page 41 line [5]T page 28 lineNot fresh evidence Later, however, Twidale did obtain a surveyor’s report, dated 26 February 2022, several months after the trial concluded[6]. Clearly, then, it was not before the primary decision maker. In several preliminary decisions of the Appeal Tribunal it is directed that any application to rely on fresh evidence will be heard and determined ‘together with the application for leave to appeal’[7]. In fact, no such application was made. In any event it would have met the objection that there is no evidence that the suggested fresh evidence was not reasonably obtainable at the time of the trial[8]. In any event, if it were admitted, it would not seriously affect the result.[6]On 18 October 2021.[7]Directions 5 January 2022 paragraph 4(c); 11 July 2022 paragraph 1.[8]As required for admission of new or fresh evidence: Holland v The Queen (2005) 154 A Crim R 376; R v Erasmus [2006] QCA 245 (leave refused in each case); Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404. The dispute descended to a debate about the respective positions of two screws in concrete pillar, reminiscent of legendary mediaeval disputes about the number of angels able to sit on the point of a needle. Twidale contended that a screw ‘in the face of the concrete pillar’ determined the precise boundary.[9] Marshall, on the other hand, submitted that the true boundary marker, as fixed by her surveyor, was a ‘GI nail’, marked with red tape.[10] A fine distinction was drawn between the surveyor’s screw and one inserted by a builder to carry a string line. [9]T page 25 line 13, page 26 line 32.[10]T page 11 lines 38-39, page 29 line 34.Turns on the facts This case turns on its own fact, not on esoteric law. The ultimate factual question is whether the new fence is on Marshall’s property or right on the boundary line. It is common ground that the old fence is slightly but definitely upon Twidale’s land[11].[11]T page 9 lines 6-10 (Marshall), line 23 (Twidale). The adjudicator, as the judge of fact, made these findings: (a)`there is strong survey and photographic evidence that the new fence is well within [Marshall’s] property and away from the surveyed boundary line’.[12] ‘The new fence is shown to be inside [Marshall’s] property by at least [300 to 400 mm]’. Indeed, ‘the photograph of the survey marker in the back corner shows that the new fence … is approximately 600mm inside [Marshall’s] property’.[13](b)The [old] fence was considered by both parties to be a sufficient dividing fence … for the time that the parties have been neighbours’.[14](c)The boundary survey has determined that the [old] fence sits just inside [Twidale’s] property, such that it would not be practically possible to build another fence on the boundary’.[15] That is to say, the de-militarised zone was just too narrow to accommodate yet another fence.[12]Reasons for primary decision (`Judgment’) paragraph 14].[13]Judgment paragraphs [15] and [16].[14]Judgment paragraph [17].[15] Judgment paragraph [17] 3rd sentence.

Decision

Reasons for decision

It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.[26] It is not appellable error to prefer one witness’s evidence to another’s, or to give a party’s submissions less weight than he or she thinks they deserve.[26]Robinson v Corr [2011] QCATA 302 at [7].Conclusion Here there is ample evidence to support the adjudicator’s findings of fact, particularly her finding that the new fence is not on the boundary line. No appellable error of law has been demonstrated. Accordingly the application for leave to appeal must be dismissed. ORDERThe application for leave to appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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